wie ee ee tL a ere rere ma ened woe asta ee citi tee ee a esta eth ater Anti i fiie ebay me 1 deaBrert a ctaelacabees Maa inlbiteetattan absense Valme et hon '35 THDUSTRIAL LAW - validation of the acts of a collective Eely of ar arganizanion ~ meaning of 'colleciive body' ~ declaravicn sous that validabion would do cubstantz4.] injustices ~ huw 'substintial injustice' chauwld be testicd. JOH CUAPLES POLSH 7 TRANSPORT MORKEPS NUTT OF AUSTPALT® T. Wo. 1 of 1984 Smithers, Hoodward and tlerthrop Ju. ao July 19¢4 Hobart Pry CuTCHeoMng'. LUDUSPRIAL LAW - validation cf the acts of Ceoncilioricn ang Srbitration acr 1904 ss,171A POR os, T. Wo. 1 of Led avarcd and Uorthrap JU. SEN as zat war seat Pe ae mors ws a Bh ad a arp isgy TART RS eG EN er ET cog Peet ce: ee SEARS REE T° OR IN THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) T. No. 1 of 1984 ) ) INDUSTRIAL DIVISTON ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA a eT es TORE Le I Se nT ee EO EOE TNO a OS RO BETWEEN : JOHN CHARLES ROLPH Appellant and TRANSPORT WORKERS UNION OF AUSTRALIA Respondent CORAM: Smithers, Woodward and Northrop JJ. DATE: 25 July 1984 PLACE: Hobart - ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. atedta Es tSunta Dna me thnatl sbilenhe airman treater satan Sim Deland eta onesies se beaten thats enna atone eam et erecta et Qe SIRE EE TREY STEERS TTPO TEE EET TT LS EN ET SET ETT om MUI 7 MII me SI URE epee 4 EAD Ry i Re Ne ERS ath weasel, Powe a re eee ey ewer' ee ae catty ea Ast tab eve tee tae i oO me ee ee ee Deedee an tt FP TC FE TO A dee POE ee Ee ane ond ote {IN THE FEDERAL COURT OF AUSTRALTA ) ) TASMANIA DISTRICT REGISTRY ) ) INDUSTRIAL DIVISION ) ) EX TEMPOPE JUDGMENT ) BETWEEN ; No. Tl of 1984 g.C. ROLPH ediw] | Coram: Smithers, Woodward and Northrop JJ. 25 July 1984 REASONS FOR JUDGMENT SMITHERS J.: I concur Woodward J. I ceitrfy that th Mi. Justice Savrdten Dated: 2$/7/?q preeriong pageg abe a true curv of ta Reasons for Judgment here7a of bes as wnt ssociate A atedliedet ied eat eee eee ee me (Appellant) TRANSPORT WORKERS UNION OF AUSTRALIA (Repondent ) with the reasons therein of my brother a a rn ry me rate May ee im re titer a > use. SSS ste ah areal ttc amet ee nes Mee: Tne Narain Sa abe at a, eta Es ds tM OE Or wheat RE Wee OM tbs tes ek at q TH THE FEDGRAL COUPT OF AUSTRALIA PTRSUANTA DISTRICT REGUISTRY T. Ho. 1 of 1984 a LWIBISTRLAL DTVISTOU OW BFPRAL FROM THR EPDCRs L COURT OF AUSTRALTA BETHREN : oO 1-3 ta fl aa TOM CHAPLES TOLPH Ape v UUTON Fespondent INDGES; Smithers, Hoclward and Northrop dJ. OALPE: 25 duly 1984 ELACE: Hobart Ex TRMPOPE JURCHE NE WOOLMARD J. This application cancerns a meeting of a union (being an organization of employees uncer the Concarliction and Arbitration Act 1904) which took place eight vears ago on 7 August 1976. 1t was a special general meeting of the Tasmanian Branch cf the Transport Workers Union ard was held pursuant to an order of the Commoanvealth Industrial Courl that the rules of the Union he ouvservead. { | | | | i ] i { }i } he eer Ve ee we eee ee ee ek we Nenah nk aba LE ee a ee aa LER Si aA nee) Cd aM ne Re eet ae ake eller om ee + OL En een - At the meeting certain charges were made against the appellant who was then the Branch Secretary. They were unanimously found to have been established to the satisfaction of the mecting, which the appellant chose not to attend. The meeting then passed a vote of no confidence in the appellant; and the Branch President who, in accordance with the Union rules and the Court order, chaired the meeting, declarad the appellant's office fo bed to be vacant as he was bound by the .vies to do. The appellant contested and lost a later election. fe hes brought this action seven years later because he obviously suffers from a deep sense of injustice. He is determined to take whatever steps are open to him to clear his reputation or the damage which he eels it suffered at the meeting, although he concedes that he cannot undo the several elections which have taken ploce since he was ousted from office. He secks, in essence, a doclaration that the meeting was not properly conducted and the meeting's conclusions not validlv reached, The present application marks only a preliminary step in the appellant's foreshadoved plan of campaiqn. He wishes to avoid the effect of 3.171% of the Conciliation and Arbitration Act ('the Act'), Wnich he belleves would prevent him from challenging the conduct and conclusions of the meeting becouse it is designed to protect union decisions and actions which have stood unchallenged for at least four years. He has applied under s.171G of the Act for a declaration that s.t?7iP should not be pernitted to prevent his challenge to the meeting, because of the injustice he would wt Me AE cara ata Mata eee aha es teu ei Clete ei fo te nee bak aa mesh Paleechaten APatte be Ee tee eb eed Belen eke en © de Ak ee ee te a one dD suffer if he were so prevented. The learned trial judge, ina careful and detailed judgment, after hearing evidcnce, rerected the application; and the appellant, who appeared jin person, has failed to persuade me that his Honour fell into any error in reaching his decision. On the contrary, his findings of fact are fully supported by the evidence and there 38 nothing T can usefully add tao what his Honour has said ubout the marits of the application. There is however am aspect of the cpplication which was not raised before his Honour (or indeed hefore this Court until the matter was raised from the Bench) which recutres altention. It involves consideration of the precise effect of ss.17]F and 171G of the Act, the relevant parts of which are in the follewine terms - "SECTION 171F VALIDATION OF CERTAIN ACIS 171(T)(1) EDeemed coxnplianced Subject to this section and ta section 1716, upon the e.rpiration of 4 years from ~ -- (a) the doing of an act - (i) by, or by persons purporting ta act as, a collective body of an orgerizstion or branch of an organization and purporting to exercise rower conterrcd by or under the rules of the organization or branch; or (1i) by «@ person holding or purporting to hold an office or position jn oan organicaLlion or branch and purporting to exercise power conferred by or unler the rules of the organization or branch; the act, .... shall, for all purpose heve heen done 3n ccnoliance wilh t organization or branen. s, be deened to he rules of the Me natn 6 a Enna aed tbe at i etd an Seat Aya Lineal mare venta meted La ftabat celia: ete Pea. Sa elie cles ae SSineab Ele tet SR Tek sete bee ase OR et me weet Se te me ee SECTION 17]G ORDER AFFECTING APPLICATION OF SECTION 1718 OR 171F 171G(1) C€Declaration of substantial injusticel Where, upon an application for an order under this section, the Court is satisfied that the application of .... section 171F to an act would do substantial injustice having regard to the interests of the organization. menbers or creditors of the organization or persons having dealings with the organization, the Court shall, by order, declere accordingly and, where such a declaration is made, .... section 171%, .... does not apply, and shall be deemed not to have applied, in relation to the act referred to in the declaration. 171G(2) CAnplication] The Court nav make an order under sub-section (1) on the apelication of the organization, a membec of the organigation or any person having a4 sufficient interest in respect of the orqanization." The expeessicn ""coliective body" used in s.171F is 2 4 defined in s.171A in the following terms: "collective body" means - (a) an relation to an organizaticn - the committee of management or any conference, council, committee, panel or other body of~or within the organization; and » {b) in relation to a branch of an organization - the committee of management or any conference, council, conmittee, panel or other body of or within the branch." It as tobe noted that the part of the Act thich contains ss.171A, 171F and 171G was inserted in 1974 when the conditions of registration for unions set out in Regulation 115 of the Conciliation and Ayr! utration Act Requjations had been leng established. Those conditions include a requirement that unten v t uw J . rules provide for the electicn of (anong other things) "any conference, council, panel or other body (additional to the committee of management), which 15 empowered to determine policv or to exercise functions of management in the association or : branch". The close similarity of wording contained in s.171A of the Act is noticeable and I believe that the effect of s.171F on a Ww atid Uke en ee ee ed ee tee et proper reading is almost certainly dJinited to elected bodics answering the description of a "collective body". It should not be extended - as is sought to be done in this arplication - to the decisions of a general meeting of a branch of an organization. ' If £ am right sn thas, the application would be largely misconceaved. I say lergely wmisconceived because I am inclined to the view that the act of the chairman of the meeting in declaring the appellant's office vacanr, as he was bound to do after the vote of no confidence sus passed, does fall within s.171F. tae noe Although he was in one sense the mere creature of the meeting, he LD deadanbieatens Rates Mat DAA Deetenle eam neerieade = mh ee LOE Aran al'Y dual nha ne wns held his position of chairman by virtue of his office as Branch My nm President and he may therefore have been "purporting to exercise power conferred by or under the rules of the... branch" within the meaning of s.17]F(1)(a)(iz). On this view 1£ was open to the 5 appellant to challenge in these proceedings the validity of the steps which led up to ths chairman's declaration that the appellant's office tms vacant, and he was permitted to do so, but For the reasons given by the learncsd trial judge, which I adopt, that chailenge fails. jet Kae SEA Rate FU iin en ae Mann se Cb a A ante be, ET ET OER MTEL LTE OLR TE VRE © RANE OR ERNIE ANNA OTE ATI OT MSU y Leb mth Bo ce ta rn ane he et bee ee wee To LAL BOO aS te Coe tend eR PA ll ce a at Re tet te datalt aS at aaa nS total ako Mann dedtente Pe pment eT Ve MONT me dee Ek arte Uf, I prefer not to decide finally the questions of statutory interpretation, to which T have just referred, in @ case where one side jis unrepresented and the other is taken hy surprise. For the reasons J have given, the application is probably either wholly or largely misconceived, but it fails in any event on the merits as dealt with by the learned trial jude. The only other point 1 wish to advert to is the proper approach to the test of "substantial inyustace" referred ta in 5.171G of the Act. The Court 15 required to have regard to any substancial injustice which may be suffered by mwenbers of the organization concerned. Loam preparc to assume for present purposes that substantial injustice to an individurl member nay fall within the moanine of the Act. But such irjuatice must be looked at in the context of the interests of the wider mewbership a of the organization an order to determine whether the tert of substantial injustice is satisfied. Further, the injustice referred to must relate to the foreclosure of the right to challenge an act as a result of the passage of time. The question in this case is not "Did an injustice occur to the appellant at the meeting?" but "Nould it be unjust to orevent the appellart from challenging the proceedings of the peetang more than four years after it was held?" For the reesons given by the learned trial judge the appellant has, in my view, failed to satisfy this test. The appeal] should accordingly be dismissed. Bh et en eRe whats edie aah wate the ee Sacre A et : ' : . Nem Cotemunttenel Sarcem US! anal mann nate elena ete ened bat i] ent, WEF Ai Pa at de ada RTS Sa TE ele named sh dahbtete huts ach eats tetas " i | ' ' I hereby certify that the six (6) preceding pages are a true and > accurate copy of the, Reasons for dudgment herein of The Hon. Hr. Justice Woodward . EZ VerGe here. B&Sociate Dated: 25 July 1964 -- - re nes er ee CR RE RED nee > aha. sy twat Se eat na the wet wh Sereda we Se eee te Soe Mate paket sore mS et a ee re de NS mel eats aire Letter ind ny Me ee ed arrest Geman ame oe IN THE FEDERAL COURT OF AUSTRALIA ) ) . TASMANIA DISTRICT REGISTRY ) T. No. 1 of 1984 ) ) INDUSTRIAL DIVISTON ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : JOHN CHARLES ROLPH Appellant and TRANSPORT WORKERS UNION OF AUSTRALIA NORTHROP J. Respondent Smithers, Woodward and Northrop JJ. 25 July 1984 Hobart » REASONS FOR JUDGMENT I would dismiss the appeal and I concur with the reasons already given. re rt TERRA TIER TST SREY ren Ree RR Re SER CE ITY SERINE SY Es TRC 7 > Asie 2 —ow 4 RES, FSS E certify that this andethe 'S Preveding-—peges—aie a true copy of the Rezsons for Judgment herein of the Kenourable Mr. Justice AM. AOrtinep . j Anciats Aer hov,/ Dated: 6 Qecguot (9 PY. AS han o-oo eee ee ee t t f Sera ~ Q38 Loo THDUSTRIAL LAtl - valedatsun cf the acts of a collective holy of an + a at ra) tr mn fu4 t th mM n ray n s ay a Pan oO aa c ue uw vi organization - meaning of 'collect that validation would do cubstantial injustica ~ how 'substantial injustice' shevli be tested. SOLER yo TPATSDOME MONKESS | MEOW OF RVSTT Smitters. Noodaward and Uorthrop dd. 25 duly 1984 Hobart A cen ies abbots et eS deen. ee mene IN _ THE FEDERAL COURT OF AUSTRALIA ) ) TASMANIA DISTRICT REGISTRY ) T. No. 1 of 1984 ) ) INDUSTRIAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: SOHN CHARLES ROLPH Appellant and TRANSPORT WORKERS UNION OF AUSTRALIA Respondent CORAM: Smithers, Woodward and Northrop JJ. DATE: 25 July 1984 ELACE: . Hobart - ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. SRE IIEI IE ter agree re iemenemregre Sme es e e e eep pre we nas rape Sn ees er en eee IN THE FEDERAL COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY No. Tl of 1984 INDUSTRIAL DIVISION EX TEMPORE JUDGMENT BETWEEN : J.C, ROLPH (Appellant) AND: TRANSPORT WORKERS UNION OF AUSTRALIA (Repondent) ' Coram: Smithers, Woodward and Northrop JJ. 25 July 1984 REASONS TOR JUDGMENT SMITHERS d.: I concur with the reasons therein of my brother Woodward J. nn re nn ey . | Il ceivily that this 4nd-3> Vs pou: pecerdir pages @rs a truc corr oF " t f : Kea. ns for Judsment hereiacer hao re wu | ; i H Me. Justice Swtin | | '1 rated: 2$/7/%5 rt tie ee re er ee ee - - ae sf eee sx nm ce Nm a ee tt eel le Ill THE FROERAL ¢ TASMANIA DISTRICT RUCTSTRY COURT GF AUST PRALTA 1 of 1944 THUOICTRIAL DIVISTON ov AEPSaL, FEGM THE ETD )) T. Uo, I ! BETWEEN: JUDGES: Smilhoes, Howl OALTT: ao July 1934 PLACE: Hobart WOCKWARD J. "aid Aprellent Respenadent and Worvthrop dJ. This application cenceens a meating of a union (being an organization of employees under the Conciliation and Arbitration Act 1904) which took place eight vears ago on 7 August 15976 Lt was aospecial general meeting of the Tasnanian Branch of the Transport Workers Union ard was held pursuant to an order of the Commonveulth Industri oueerved. Fn a FREE re a A pe eT RE NA ee ee al Court that the rules of the Union he orm ee re ates me ee are re en ae en ee ee eee, On ne, At the meeting certain charges were made against the appellant who was then the Branch Secretary. They were unanimously found to have been esteblished to the satisfaction of the meeting, which the appellant chose not to attend. The meeting then passed a vote of no confidence in the appellant; and Lhe Branch Peesident who, in accordance with the Union rules and the Court order, chaired the meeting, declared the arpellant's office to be vacant as ha vas bourd by the .ules to do. The appellant contested and lost a latsr election, He hus brovaht Chis acticn seven years later because h obviously autfers eron a deen sense of aniustice. He us dGetevninod to tale whatever: cbeps sre open to him to clear his reputation of the damage vhich he ffeeis it suffered at the meeting, e&)ihoush he concedes that he cannot undo the several elections which hive taken plece sines ha was ousted fron orfice. He seeks, in essence, a dealaration that the meeting was not mn properly conducted and the meetina's conclusions not validiv reached, The present apelication marks only a preliminary step in the appellant's foreshadowed plan of cawpaign. He wishes to avoid the effect of 3.]71F of the Coneslietion and Arbitration act ('the Act'), which he belicves would prevent hia From challenging the conduct and conclusions of the meeLling because it is designed to protect union decisions and actions which have stood unchallenged for at Jeast four years. He has applica under s.171G of the Act for a declaration thut s.t?7lP cheula net be peraitted to prevent his chaJlenge to the neating, because of the injustice he woulda i] a, we suffer if he were so prevented. The learned trial judge, ina careful and detailed judgment, after hearing evidence, rejected the application; and the appellant, who appearcd in person, has failed to persuade me thet his Honour fell anto any error in reaching his decision. On the contrary, his findings of fact are fully supported by the evidence and there 26 nothing T can usefully add to what his Honour has said about the mérits of the application. There is however an aspect of the epplication which was not raised before his Honour (or indecd scfore this Court until the matter Was raised from the Bench) which requires attention. It involves consideration of the precise effect of ss.171F and 171G of the Act, the relevant part uw of vwhach are in tne followug a terms —- ce "SECTION J71F VALIDATION OF CERTZIN AC La 1é) 171(F)(1) CDeened conpliancel Subject to this sectjon and to section 171G, upon the e.piravion of 4 years from ~ 2 (a) the doing of an act - (i) by, or by persons purporting to act as, a catjlective body of an orvanizstion or branch of an organization end purvpertinea to cxuercise nowlr conterrad by or under the rules of the organization or branch; or (12) by a porsen holding or purporting to hold an office or position in an organization or branch and purporting to exercise power conferred by or under the rules of the organization or branch; the act, .... shall, for a1] pucrases, be deened to have been dene In ccovinliance will, the rul.s of the oraganization ar branch. Si Umien ory, a) *; -~! Rinne tA beta te tenes alien ae me 8 defined contains i SECTION 171G ORDER AFFECTING APPLICATION oF SECTION 171B OR 171F 171G(1) CDeclaration of substantial - injustice] Where, upon an application for an order under this section, the Court is satisfied that the application of .... section 171F to an act would do substantial injustice having regard to the interests of the organisation. members or creditors of the organization or persons having dealings with the organisation, the Court shalj, by order, declare accordingly and, where such a declaration is made, .... section 171F, .... does not apply, and shall be deemed not to have applied, in relation to the act referred to in the declaration. 171G(2) EApplication] The Court mav make an order under sub-section (1) on the aprlication of the organization, a merber of the orcanization or any person having a sufficient interest in respect of the organiuation." The expressicn "collective body" used in s.i71P n s.-l71A in the followins terms: "collective body" means - (a) gn relation to an organization - the committee of management or any conference, council, committee, panel or other body of —or saithin the oraanization; and ' (b) in relation to a branch of an organization - the committee of management or any confercnce, council, committee, panel or other body of or within the branch." It is to be noted that the part of the Act which ss.171A, 171F and 171G was inserted in 1974 when the conditions of registration for unions set aut in Regulation 115 of the Concilistion and Arbitration Act Requlaticns head been lone established. Those conditions include a requirenent that unicn — = meee rules provide for the electicn of (among other things) "any conférence, council, panel or other body (additional to the committee of management), which 1s empowered to 'determine policy or to exercise functions of management in the association or branch". The close similarity of wording contained in s.171A of the Act 1s noticeable and I believe that the effect cf s.171F on a proper reading is alnost certainly limited to elected bodics ansvercing the description of a "collective body". It should nat be cxtenided ~ as 1s sought to be done in this application - to the oF a branch of an organization. If Iam right in this, the application would be largely musconceived. I say largely nmiscenccived Lecause I am rnelined to the view that the act of the chairman of the meeting in declaring the appellant's office vacant, as he wus bound to do after the vote of no confidence was passed, does fall within s.171F. Although he was in one sense the mere crcature of the meeting, he held his position of chairman by virtue of his office as Branch President and he may therefore have been "purporting to exercises power conferred by or under the rules of the... branch" within the meaning of s.17]F(1)(a)(1i). On this view 1t was open to the appellant to challenge in these proceedings the validity of the steps which Jed up to the chairrman's declaration thet the appellant's office was vacant, and he was permitted to do so, but for the reasons given by the learned trial judge, which I adopt, that chailenge faals. ~ — Pee ee Tern en ee ee nen _ nee eee eee: a aren ATe dng Ime ae ee ee eee ae ee weecees hee eo I. prefer not to decide finally the questions of statutory interpretation, to which I have just referred, in @ case where one side is unrepresented and the other is taken by surpceise. For the reasons TI have given, the application is probably either wholly or larqely misconceived, but it faijJs in any event on the merits as dealt with by the lcarned trial judqe. The only other point 1 wish to advert to is the pruper appresch to the test of "substanti injustice" referred to in $.171G of the Act. The Court 15 required to have resard to ar substantiat injustLlee which may be suffered by wambers of the erqenization concerned. 1 am preparc to assure for present purposes that substantial injustice to an individual member may fall witnin the meanine of the Act. But such Injustice rmusy bo looked at in the contest of the interest. oF the wicer menbes shir of the organtuntion in order te determine whether the ter. of substantial injustice is satisfied. Further, the injustice referred to must relate to the foreclosure of the right to challenge an act as a result of the passage of time. The gure stion in this case 1s not "Did an injustice occur to the appellent at the meeting?" but "Nould it be unjust to prevent the appcllant from challenging the proceedings of the meeting nore then four years after it was held?" For the reasons given by tie learned trjal judge the appellant has, in my view, failed to satisfy this test. The appea] should accoidingly be dismissed. eee lee eee Lore wwe = dane wake nee mK Natal a ae te be ee ee ee I hereby certify that the six (6) preceding pages are a true and accurate copy of the, Reasons for Judgment herein of The Hon. Mr. Justice Noodward Vege" wrt CLL. , Lésociate Dated: 25 July 1984 rere ee te RE ee ry wt 60H os te ee a ee a eee ee eee IN THE FEDERAL COURT OF AUSTRALIA ) ) , TASMANIA DISTRICT REGISTRY ) T. No. 1 of 1984 ) INDUSTRIAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : JOHN CHARLES ROLPH Appellant and TRANSPORT WORKERS UNION OF AUSTRALIA Respondent CORAM: Smithers, Woodward and Northrop Jd. DATE: 25 July 1984 PLACE: Hobart NORTHROP J. REASONS FOR JUDGMENT I would dismiss the appeal and I concur with the reasons already given. 2S oe, 5 a ee anm tl I certify that this emdetho "S prevedung—pavee—are a true copy of ihe" Feasons for Judgment herein of the Honourable Mr, Justice AM. Nertinop - q h Aesniats ere ad j Dated: 6 Qigu<ot (96. | naan is alate ir ehamenaemeneee meee er tee Sa en eee tee ee ee we ae